Chatman v. Wynn

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES CHATMAN, B24332, )

)

Plaintiff, )

)

vs. )

) Case No. 23-cv-3465-DWD

DR. WYNN1 and )

WEXFORD HEALTH SOURCES, INC., )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff James Chatman, an inmate of the Illinois Department of Corrections

(IDOC) currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”),

brings this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his

constitutional rights. Plaintiff alleged that Dr. Wynn, now identified as Zaw Win, M.D.,

was deliberately indifferent to his medical situation by prescribing medication that

caused or worsened other medical issues and by refusing to discontinue it, and that

Wexford contributed to this harm by maintaining a policy or practice of using

medications to cut costs instead of referring individuals to medical specialists.

Defendants filed a Motion for Summary Judgment (Docs. 26, 27) on the issue of whether

Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by

the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). After a volley of responses and

1 The Clerk of Court is DIRECTED to update the docket sheet to reflect Dr. Wynn’s name as Zaw Win,

M.D.. (Doc. 20).

replies (Docs. 31, 32, 33, 34, 35), the matter is now ripe for consideration. For reasons

explained, Defendants’ Motion is granted, and this matter is dismissed without prejudice.

BACKGROUND

Plaintiff initiated this lawsuit by filing a Complaint on October 22, 2023. (Doc. 1

at 16). In the Complaint, Plaintiff alleged that in February of 2022 he experienced kidney

failure and other medical emergencies that required a week-long hospitalization. Prior

to being hospitalized, he had complained to Dr. Win about side effects of mediations that

were being used to treat Tardive Dyskinesia and he had asked to have the medications

discontinued, but Dr. Win refused. He claims that Dr. Win’s refusal was part of a bigger

cost-cutting policy that Wexford maintains, which requires that an inmate be given

medications before he can be seen by a specialist. He also alleges Wexford is at fault for

distributing medication in packaging that does not explain the side effects. He claims he

eventually learned that the medications he had complained about to Dr. Win were the

cause of his February 2022 medical emergency. Upon initial review, the Court allowed

the following claims to proceed:

Claim 1: Eighth Amendment deliberate indifference claim against Defendant

Dr. Win for his continued use of Amantadine and Cogentin after

Plaintiff complained of ill-effects;

Claim 2: Monell claim against Wexford Health Sources, Inc. for maintaining a

cost cutting policy that required the use of medications over

specialist visits, and a policy of failing to disclose side effects of

medications;

Claim 3: Intentional infliction of emotional distress claim against Dr. Win and

Wexford Health Sources, Inc. for knowingly proceeding with a

harmful course of care;

Claim 4: Negligence claim against Dr. Win for his treatment decisions.

(Doc. 9).

The parties undertook discovery on the exhaustion of administrative remedies,

and in doing so they have identified two grievances relevant to the claims in this case.

Initially, Plaintiff filed a narrative response (Doc. 31) to the Motion for Summary

Judgment. The Defendants then filed a reply (Doc. 32) wherein they highlighted the fact

that Plaintiff had not included a response to their statement of material facts. Plaintiff

filed a “response” (Doc. 33) to their reply wherein he simply highlighted the Defendants’

allegation that he did not file a proper response. On October 8, 2024, Plaintiff moved for

leave to supplement his earlier responses. (Doc. 34). He included a properly formatted

response to the Defendants’ statement of material facts, and he also included new legal

arguments in opposition to their Motion. Defendants oppose this late “sur-reply” brief.

(Doc. 35).

FINDINGS OF FACT

On April 11, 2023, Plaintiff filed grievance 1172-04-23. (Doc. 27-1 at 11-12). In this

grievance he described his February 2022 hospitalization and complained that he

believed it was necessitated by medications he had previously asked to discontinue due

to ill-effects. On April 25, 2023, the grievance officer responded indicating that

medication recommendations from the hospital were being followed and that at a recent

appointment, Plaintiff was noted as improving. (Doc. 27-1 at 10). The Chief

Administrative Officer (CAO) concurred with the grievance officer’s denial of the

grievance on April 26, 2023. (Id.). On April 29, 2023, Plaintiff signed the denial form

indicating his intent to appeal. (Id.). The Administrative Review Board (ARB) received

the appeal on May 3, 2023, and on November 8, 2023, it issued a denial of the grievance,

finding the issue was appropriately addressed by the prison administration. (Doc. 27-1

at 9).

On September 18, 2023, Plaintiff submitted grievance 3148-09-23. (Doc. 27-1 at 3-

4). In grievance 3148-09-23 he discussed interactions with Dr. Win concerning his

prescription medications. He explained that he told Dr. Win that the medications

prescribed were not helping with his Tardive Dyskinesia and he asked to be taken off of

the medications. He explained that he learned from another medical provider in

September of 2023 that the medications were not actually appropriate for the treatment

of Tardive Dyskinesia. He had also been told during his February 2022 hospitalization

that his medications caused his medical emergency. He expressed concerns in the

grievance that he may still have ill effects in his brain or kidneys, but that he has not been

examined via CAT scan or otherwise. He wrote, “PS—Wexford employee Dr. Wynn (Dr.

Winn) employed cost cutting procedures which resulted in my injuries[.]” (Doc. 27-1 at

4). On September 21, 2023, a grievance officer responded and indicated Plaintiff was no

longer taking any psychiatric medications and he was being seen “for his diagnosis.”

(Doc. 27-1 at 2). On September 22, 2023, the CAO concurred with the denial of the

grievance, and on September 26, 2023, Plaintiff appealed. (Doc. 27-1 at 2). The appeal is

stamped as received by the ARB on October 2, 2023. (Doc. 27-1 at 2).

A grievance log from the ARB indicated that grievance 1172-04-23 received a

“hearing date” on November 8, 2023. (Doc. 27-1 at 1). By contrast, grievance 3148-09-23

had no hearing date on the ARB log. (Doc. 27-1 at 1). Plaintiff stated in his latest response

from October of 2024 (Doc. 34) that he has not yet received a response from the ARB to

grievance 3148-09-23. The Defendants indicated in their latest response (Doc. 35) that

they subpoenaed records from the ARB on January 9, 2024, and got a response January

18, 2024, thus they do not have information about what has happened to any grievance

pending on appeal after that date. (Doc. 35 at 5, n. 1).

CONCLUSIONS OF LAW

A. Legal Standards

Summary judgment is proper if there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In

determining a summary judgment motion, the Court views the facts in the light most

favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex

Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).

Courts generally cannot resolve factual disputes on a motion for summary judgment. See

Tolan v. Cotton, 572 U.S. 650, 656 (2014) (“[A] judge’s function at summary judgment is

not to weigh the evidence and determine the truth of the matter but to determine whether

there is a genuine issue for trial.”) (internal quotation marks and citation omitted).

However, when the motion for summary judgment pertains to a prisoner’s failure to

exhaust administrative remedies, the Seventh Circuit has instructed courts to conduct an

evidentiary hearing and resolve contested issues of fact regarding a prisoner’s efforts to

exhaust. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). After hearing evidence, finding

facts, and determining credibility, the court must decide whether to allow the claim to

proceed or to dismiss it for failure to exhaust. Wilborn v. Ealey, 881 F.3d 998, 1004 (7th

Cir. 2018). The court is not required to conduct an evidentiary hearing if there is no

genuine dispute of material fact, and the determination is purely legal. See e.g., Walker v.

Harris, 2021 WL 3287832 * 1 (S.D. Ill 2021); Miller v. Wexford Health Source, Inc., 2017 WL

951399 *2 (S.D. Ill. 2017).

The Prison Litigation Reform Act (PLRA) provides that a prisoner may not bring

a lawsuit about prison conditions unless and until he has exhausted all available

administrative remedies. 42 U.S.C. § 1997e(a); Pavey, 544 F.3d at 740. “The exhaustion

requirement is an affirmative defense, which the defendants bear the burden of proving.”

Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). For a prisoner to properly exhaust his

administrative remedies, the prisoner must “file complaints and appeals in the place, and

at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022,

1025 (7th Cir. 2002). “[A] prisoner who does not properly take each step within the

administrative process has failed to exhaust state remedies.” Id. at 1024.

As an inmate in the IDOC, Plaintiff was required to follow the grievance process

outlined in the Illinois Administrative Code. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017).

An inmate may request that a grievance be handled as an emergency by forwarding it

directly to the CAO. 20 ILL. ADMIN. CODE § 504.840. If it is determined that there exists a

substantial risk of imminent personal injury or other serious or irreparable harm, the

grievance is handled on an emergency basis, which allows for expedited processing of

the grievance. Id. If a grievance concerns protective custody, a plaintiff is allowed to file

that grievance directly with the ARB. 20 ILL. ADMIN. CODE § 504.870(a)(1)

If the inmate is not satisfied with the CAO’s response, he can file an appeal with

the IDOC Director through the Administrative Review Board (ARB). 20 ILL. ADMIN. CODE

§ 504.850(a). The ARB must receive the appeal within 30 days of the date of the CAO’s

decision. Id. The inmate must attach copies of the responses from the grievance officer

and CAO to his appeal. Id. If an inmate is appealing a grievance that the CAO

determined to be of an emergency nature, then the ARB shall expedite processing of the

appeal. 20 ILL. ADMIN. CODE § 504.850(f).

B. Analysis

As a preliminary matter, the Court grants Plaintiff’s Motion to Supplement (Doc.

34), and it considered the assertions and arguments presented in that brief. Although

Defendants are correct that sur-reply briefs are not permitted, this is a case brought by a

pro se litigant and the intricacies of the summary judgment rules can be difficult for pro

se litigants to follow. Here, it is obvious that Plaintiff initially did not understand the

proper format for responding to the Motion (Doc. 27), but he later corrected his

misunderstanding and filed a properly formatted response (Doc. 34-1). Ultimately, the

re-formatting and addition of new arguments does not change the outcome, so it is not

prejudicial to the Defendants for the Court to consider this late supplement.

It is undisputed that Plaintiff filed two grievances relevant to the allegations in this

lawsuit. The first grievance was initiated on April 11, 2023, and received a final ruling

from the ARB on November 8, 2023. (Doc. 27-1 at 9-12). The second grievance was

initiated on September 18, 2023, it was appealed on September 26, 2023, and it was

received by the ARB on October 2, 2023. (Doc. 27-1 at 2-4). This lawsuit was filed just 20

days later on October 22, 2023. (Doc. 1 at 16). The timing matters because a sue first

exhaust later approach is not acceptable under controlling precedent. “By its plain terms,

the PLRA requires prisoners to exhaust administrative remedies before filing suit; a ‘sue

first, exhaust later’ approach is not acceptable.” Chambers v. Sood, 956 F.3d 979, 984-85

(7th Cir. 2005). Under the Chambers rationale, Plaintiff filed this lawsuit before he had

completed the exhaustion process for either of the relevant grievances.

In his response to the Defendants’ Statement of Material Facts, Plaintiff admits that

on November 8, 2023, the ARB denied his April 11, 2023, grievance (grievance 1172-04-

23). (Doc. 34-1 at 4). He also admits that as of June 18, 2024 (when the Defendants filed

their Motion for Summary Judgment), he had yet to receive a response from the ARB to

his September 18, 2023, grievance (grievance 3148-09-23). (Doc. 34-1 at 5). Plaintiff argues

in his response that the prison officials have made the grievance process unavailable by

failing to adequately address the substance of his grievances and by failing to provide

timely responses to his appeals with the ARB.

He points to language in the 20 Ill. Admin. Code § 504.850(d), which states the

Director of the ARB shall render a decision on an appeal “within six months after receipt

of the appealed grievance, when reasonable feasible under the circumstances.” He claims

that it has now been a year since he appealed grievance 3148-09-23 and he is still waiting

for a response. He also argues the grievance process has been “opaque” and unavailable

because the substantive responses to his grievances have not addressed the entirety of his

concerns, focusing only on his Tardive Dyskinesia instead of also addressing his kidney

and brain concerns.

Plaintiff’s argument about the delayed response to his September 2023 grievance

is not relevant to the exhaustion issue in this case because at the time he filed the

complaint, he had not even waited a full month for the ARB to respond. He transmitted

his appeal to the ARB on September 26, 2023, and he filed this case on October 22, 2023.

This left hardly any time at all for the ARB to respond. At the time he filed the complaint

in October of 2023, he also had not yet waited six months for the ARB to respond to his

April 2023 grievance. Ultimately, the ARB responded to his April 2023 grievance six

months and five days after receiving the appeal (they got the appeal May 3, 2023, and

responded on November 8, 2023). On these facts, Plaintiff sued before waiting to

complete the exhaustion process.

While the ARB’s responses might not have been ideally expedient, the Court is not

persuaded that the ARB’s responses were so slow that the process was unavailable. The

Court also notes that there is no indication Plaintiff did anything to learn the status of his

pending ARB appeals prior to filing this lawsuit, which weighs against finding that the

process was a dead end or had become unavailable. See e.g., Lockett v. Bonson, 937 F.3d

1016, 1027 (7th Cir. 2019) (finding that an inmate who got no receipt or response to an

appeal should have inquired as to the status of the appeal before filing a lawsuit); Hill v.

Bond, 2015 WL 1166053 at * 4 (N.D. Ill. Mar. 11, 2015) (finding that an inmate did not

exhaust remedies where he did not inquire with the ARB about the status of his grievance

before filing suit). Additionally, Plaintiff’s arguments about his substantive allegations

in the grievances in comparison to the substantive responses by the prison are not

relevant until he has fully exhausted the grievance process, which he had not yet

accomplished when he filed this case. Thus, these arguments provide no basis to find

that the grievance process was somehow opaque or unavailable. In sum, Plaintiff failed

to exhaust his administrative remedies before filing this lawsuit, so the case must now be

dismissed without prejudice.

At the outset, the Court exercised supplemental jurisdiction over Claims 3 and 4,

concerning Defendants’ alleged violations of state law. Now that Claims 1 and 2 are

being dismissed without prejudice, the Court will relinquish supplemental jurisdiction

over Claims 3 and 4. See 28 U.S.C. § 1367(c)(3); Hansen v. Bd. of Trs. of Hamilton Se. Sch.

Corp., 551 F.3d 599, 607 (7th Cir. 2008) (“When all federal claims have been dismissed

prior to trial, the principle of comity encourages federal courts to relinquish supplemental

jurisdiction pursuant to § 1367(c)(3).”); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.

1999) (“[T]he usual practice is to dismiss without prejudice state supplemental claims

whenever all federal claims have been dismissed prior to trial.”).

DISPOSITION

The Clerk of Court is DIRECTED to update the docket sheet consistent with

footnote 1—Dr. Wynn is Zaw Win, M.D.. Plaintiff’s Motion to Supplement (Doc. 34) is

GRANTED.

The Motion for Summary Judgment on the issue of exhaustion filed by all

Defendants (Doc. 27) is GRANTED. Claims 1 and 2 against Defendants Win and

Wexford Health Sources, Inc., are dismissed without prejudice for failure to exhaust

administrative remedies. Claims 3 and 4 are dismissed without prejudice pursuant to 28

U.S.C. § 1367(c)(3) because the Court now relinquishes supplemental jurisdiction over

these claims. The Clerk of Court is DIRECTED to enter judgment in Defendants favor

and to close this case.

If Plaintiff wishes to appeal this Order, he must file a notice of appeal with this

Court within thirty days of the entry of judgment. FED. R. App. P. 4(a)(1)(A). If Plaintiff

chooses to appeal, he will be liable for the $605.00 filing fee irrespective of the outcome

of the appeal. See FED. R. App. P. 3(e); 28 U.S.C. § 1915(e) (2); Ammons v. Gerlinger, 547 F.3d

724, 725-56 (7th Cir. 2008). Moreover, if the appeal is found to be nonmeritorious, Plaintiff

may incur a “strike” under 28 U.S.C. § 1915(g). A proper and timely motion filed

pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline.

Feb. R. App. P. 4(a)(4). A Rule 59(e) motion must be filed no later than 28 days after the

entry of judgment, and this 28-day deadline cannot be extended.

IT IS SO ORDERED.

Dated: October 22, 2024

DAVIDW.DUGAN

United States District Judge